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Torts Cases Outline

The area of tort law has developed over the course of centuries, and many concepts in tort law have evolved from common law. While some torts have been expanded and defined by legislation and administrative regulation, many torts and defenses to torts are derived from case law. Torts are often split into two categories: intentional torts and negligent torts. Below is an outline of key cases in tort law with links to the full text of virtually every case, provided free by Justia.

• 1 Intentional Torts
• 2 Assault and Battery
• 3 False Imprisonment
• 5 Intentional Infliction of Emotional Distress
• 6 Defenses to Intentional Torts
• 7 Negligence and Standards of Care
• 8 Negligence Per Se
• 9 Causation
• 10 Proximate Cause and Foreseeability
• 11 Res Ipsa Loquitur
• 12 Multiple Causes
• 13 Intervening and Superseding Causes
• 14 Damages in Torts
• 15 Joint Liability
• 16 Premises Liability
• 17 Professional Malpractice
• 18 Therapists
• 19 Social Hosts
• 20 Injuries to Rescuers
• 21 Negligent Infliction of Emotional Distress
• 22 Defenses to Negligence

Intentional Torts

Intentional torts describe wrongdoings that result from an individual’s intentional act. Common intentional torts are assault, battery, false imprisonment, intentional infliction of emotional distress, and trespass to land or chattels. Common defenses to intentional torts include consent and the privilege of necessity. Generally, proving an intentional tort requires showing a volitional act, intent, and causation.

Van Camp v. McAfoos 一 Fault is an essential element of an intentional or negligent tort.

Garratt v. Dailey 一 A child under the age of six may be capable of committing an intentional tort. Age is a significant consideration when establishing one’s knowledge and understanding, but not an independent factor. One must have a substantial certainty that actions would result in contact or the apprehension of contact, rather than posing the risk of contact, to satisfy the mental state required for assault and battery.

Wallace v. Rosen 一 The mere knowledge and appreciation of a risk without substantial certainty does not satisfy intent. It is also not necessary that one intends to harm, but only that one intends to act in a way that legally violates another party’s interests. Furthermore, one may successfully raise the defense of consent to physical touching when the type of physical contact is typical and necessary in most circumstances of life. An ordinary person would not find such contact offensive.

Talmage v. Smith 一 The intent to make contact with another person and inflict an injury may be transferred to another party so as to make someone intending an injury upon a certain person liable for inflicting that injury on another, unintended person.

Assault and Battery

A battery generally occurs when one intends to inflict harmful or offensive bodily contact on someone else, or an imminent apprehension of such contact, and harmful or offensive contact directly or indirectly results. An assault occurs when one intends to inflict harmful or offensive contact on someone else, or an imminent apprehension of such contact, and the other person is thereby put in imminent apprehension of such contact.

Baldinger v. Banks 一 An act that, directly or indirectly, is the legal cause of harmful contact with another person is a battery if the act was done with the intention of bringing about harmful or offensive contact or an apprehension of harmful or offensive contact to another person, and there was no consent or privilege. Only an intent to inflict an offensive bodily contact is necessary, rather than an intent to harm.

Western Union Tel. Co. v. Hill 一 An assault occurs if there is an intentional and unlawful offer or attempt to touch another person in a harmful or offensive manner under such circumstances as to create a well-founded apprehension of imminent battery and the apparent present ability to commit such battery.

Leichtman v. WLW Jacor Communications 一 One may commit a battery by blowing smoke in another person’s face, since smoke particles have physical properties capable of making contact. Contact offensive to a reasonable sense of personal dignity is offensive contact. A battery is actionable, no matter how trivial.

False Imprisonment

False imprisonment occurs when one intends to confine another person, and one’s actions directly or indirectly result in such confinement. Legal justifications for confinement are limited.

Big Town Nursing Home, Inc. v. Newman 一 False imprisonment occurs when one directly restrains the physical liberty of another person without adequate legal justification.

When one protects property, the use of deadly force or force likely to cause serious bodily harm is not permitted unless there is a threat of death or serious bodily harm to those on the premises.

Katko v. Briney 一 Property owners may not use deadly force or force that is likely to cause serious harm against a trespasser unless the trespasser threatens death or serious bodily harm to the owners or occupiers of the premises. One may not use a mechanical device to inflict harm upon another person that one would not have the privilege to inflict if they were present. Theft of property alone never privileges a possessor to use deadly force.

Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress occurs when one intentionally or recklessly causes severe emotional harm to another person by extreme or outrageous conduct. One may be liable for both the emotional harm and any bodily harm resulting from the emotional harm.

State Rubbish Collectors Assoc. v. Siliznoff 一 Intentional infliction of emotional distress may be based on threats of physical violence, even if those threats do not meet the definition of assault. This type of intentional tort arises from outrageous behavior that is intended to cause distress and actually does cause it.

Harris v. Jones 一 One may be liable for intentional infliction of emotional distress if their conduct was intentional or reckless, the conduct was extreme and outrageous, there is a causal connection between the wrongful conduct and the emotional distress, and the emotional distress was severe.

Defenses to Intentional Torts

Common defenses to intentional torts include consent and the privilege of necessity. Consent may be either express or implied. Consent gained by duress or fraud is invalid. The doctrine of necessity dictates that one may be privileged to perform an otherwise tortious act in an emergency to protect one’s own interests or the greater interests of society.

O’Brien v. Cunard S.S. Co. 一 If one’s overt behavior indicates consent, another person may be justified and not liable for assault, whatever one’s unexpressed feelings were.

Hackbart v. Cincinnati Bengals, Inc. 一 The assumption of risk permits a certain degree of violence in sports that are designed to involve it, such as professional football, but it is possible for conduct to go beyond those norms and thus give rise to tort liability.

Mohr v. Williams 一 An operation performed skillfully and successfully but without the plaintiff’s consent is wrongful if no facts arise to justify action without express consent. Intent for assault and battery in a civil action does not require that the defendant intended to injure or was negligent. It is sufficient that the act was unlawful.

Surocco v. Geary 一 One acting in good faith who destroys another party’s property under the privilege of public necessity to save the greater interests of society cannot be held personally liable.

Vincent v. Lake Erie Transp. Co. 一 If one deliberately acts to protect their own interests under the privilege of private necessity and in the process damages another party’s interests, they are liable for the damage inflicted.

Negligence and Standards of Care

One may be held liable for their actions regardless of intent under the theory of negligence. The elements of negligence are duty, breach, causation, and damages. A duty is an obligation to conform to a certain standard of conduct for the protection of others. A breach is a failure to conform to that standard. Causation means that a reasonably close relationship exists between the conduct and the resulting injury and the element of damages requires that there was some injury.

Lubitz v. Wells 一 A golf club is not so obviously and intrinsically dangerous that it would be negligent to leave it lying in the yard, where one knows that children might play with it and cause injuries.

Pipher v. Parsell 一 A driver has a reasonable duty to protect their passengers. Drivers may breach their duty of care when they fail to prevent passengers from acting in a foreseeable way that hinders the safe operation of the vehicle.

U.S. v. Carroll Towing Co. 一 To determine whether there is a duty of care, courts should evaluate whether the burden of that party in taking reasonable precautions is outweighed by the probability of the harm multiplied by the magnitude of that harm.

Vaughan v. Menlove 一 All individuals owe a duty of care to act in the way in which a reasonably prudent person would act under similar circumstances.

Roberts v. State of Louisiana 一 A person with a disability, such as a blind person, is held to the same standard of care as a reasonable person with the same disability.

Robinson v. Lindsay 一 An adult standard of care applies to a child who is engaging in an inherently dangerous activity, most often the use of a motor vehicle.

Negligence Per Se

A duty of care may be established by a statute or administrative regulation, or a court’s adoption of a standard supplied by a statute or administrative regulation. One may escape liability for negligence per se with a legally substantial justification or excuse for not complying with the standard imposed by an enactment or regulation, but these excuses are limited.

Osborne v. McMasters 一 If one violates a duty imposed by a statute designed to protect the class of persons to which the injured individual belonged from the experienced injury, the violation is evidence of negligence per se.

Perry v. S.N. and S.N. 一 To establish negligence per se, a plaintiff must belong to the class of persons whom the statute was intended to protect, and their injury must be of the type that the statute was designed to prevent. However, the existence of an underlying common-law duty should be considered before applying negligence per se.

Martin v. Herzog 一 A failure to act in accordance with a duty imposed by a statute may be negligence per se and can be considered prima facie evidence of negligence. Jurors do not have discretion to relax a duty owed under a statute.

Impson v. Structural Metals, Inc. 一 One must have a legally substantial excuse or justification for violating a statute to escape negligence per se liability.

Causation is an essential element of negligence and requires that a plaintiff prove that the defendant’s actions were the cause of their injury. Tortious conduct is the cause-in-fact of the harm when the harm would not have happened but for the tortious conduct. Causation also involves an assessment of proximate cause, generally meaning that the tortious conduct is sufficiently related to the injury to impose liability.

Perkins v. Texas and New Orleans Railroad Co. 一 One’s negligence is a cause-in-fact of harm to another person if it was a substantial factor in bringing about that harm.

Reynolds v. Texas & Pac. Ry. Co . 一 If the defendant’s negligence greatly multiplies the probability of harm to the plaintiff and is of a character naturally leading to its occurrence, the mere possibility that the plaintiff’s injury might have happened without the defendant’s negligence is not enough to break the chain of cause and effect.

Gentry v. Hereford Ranch, Inc. 一 To establish causation, the plaintiff must prove that the defendant’s conduct was a cause-in-fact of the plaintiff’s injuries. One’s conduct is a cause-in-fact of an event if the event would not have occurred but for that conduct. Mere suspicion or speculation is not enough to establish cause-in-fact.

Kramer Service, Inc. v. Wilkins 一 When the cause of an injury is beyond the experience and observations of a layperson, undisputed expert testimony is conclusive in determining whether the link between the alleged negligence and the injury is sufficient to establish liability.

Proximate Cause and Foreseeability

Tortious conduct is the proximate cause of harm when the harm resulted from the risks that made the conduct tortious. Liability is generally limited to injuries that are reasonably foreseeable, but the scope of liability may vary. The inexact science of limiting the scope of liability is addressed by the dissent in Palsgraf.

Ryan v. New York Central R.R. Co. 一 A defendant cannot be held liable for the remote results of their negligence, but only the proximate results.

In re Polemis & Furness, Withy & Co. 一 If the plaintiff’s injury was directly caused by the defendant’s negligence, it is immaterial that the type and extent of damages were unforeseeable.

Overseas Tankship v. Morts Dock & Engineering Co., Ltd. (“Wagon Mound No. 1”) 一 It is not sufficient that a defendant’s negligence was the direct cause of the plaintiff’s injury. The injury must have been reasonably foreseeable.

Overseas Tankship v. Miller Steamship Co. (“Wagon Mound No. 2”) 一 A defendant may be liable for a foreseeable injury that they could have easily prevented, even if the likelihood of the injury was low.

Palsgraf v. Long Island R.R. Co. (Dissent) 一 When there is an unreasonable act that may affect some right, there is negligence. A negligent actor may be liable for harm caused to someone outside the group of people whom one would reasonably expect to be injured, so long as the negligent actor’s act was the proximate cause of the harm. Determining proximate cause may involve asking whether there was a natural and continuous sequence between cause and effect, whether the cause was a substantial factor in producing the effect, whether there was a direct connection between the cause and the effect without too many intervening causes, whether the effect of cause on result was not too attenuated, whether the cause was likely to produce the result in the usual judgment of mankind, whether the result was foreseeable, and whether the result was too remote from the cause in time and space.

Cohen v. Petty 一 If the uncontested evidence shows that the plaintiff’s injury resulted from a sudden, unforeseeable illness that made it impossible for the defendant to control the vehicle, there is no negligence.

Res Ipsa Loquitur

The doctrine of res ipsa loquitur (“the thing speaks for itself”) states that causation in a negligence claim may be inferred when the event is of a kind that ordinarily does not occur without negligence, and the instrumentality causing the injuries was under the exclusive control of the defendant.

Byrne v. Boadle 一 The fact that a certain event occurs may be enough to establish causation in a negligence claim if such an event does not normally occur without negligence. The plaintiff may prevail even if the defendant introduces other possible causes of the harm, so long as the fact finder is convinced that the likely cause was negligence.

McDougald v. Perry 一 Res ipsa loquitur may apply in rare instances when the event itself is evidence enough to infer negligence.

Escola v. Coca Cola Bottling Co. of Fresno 一 Res ipsa loquitur only applies when the defendant had exclusive control of the thing causing injury and the nature of the accident is such that it would not ordinarily happen without negligence.

Multiple Causes

It is possible that multiple causes of harm exist, each of which alone would have been sufficient to cause the injury. Each cause may be regarded as a cause-in-fact of a plaintiff’s injury.

Hill v. Edmonds 一 When separate acts of negligence combine to directly produce a single injury, each tortfeasor is responsible for the entire result, even if just one tortfeasor’s act might not have caused the harm.

Anderson v. Minneapolis, S.P. & S.S.M.R. Co. 一 When two negligent acts unite to injure the plaintiff, a defendant will be liable if their actions materially or substantially contributed to the injury, even if another party’s negligent act would have been sufficient to cause the injury.

Summers v. Tice 一 If two independent actors are both negligent, and either of them could have caused the plaintiff’s injury, but it is impossible to determine whose conduct actually caused the harm, they must both be liable unless they can sufficiently absolve themselves. To hold otherwise would allow both negligent actors to escape liability and leave the plaintiff remediless.

Sindell v. Abbott Laboratories 一 If a plaintiff cannot identify the specific individual or entity that caused the harm, and it is unjust to preclude them from recovery, the group of parties responsible more generally for the harm may be liable. Each defendant may escape liability if they can demonstrate that they could not have caused the injury.

Herskovits v. Group Health Cooperative of Puget Sound 一 Causation in a wrongful death action based on medical malpractice does not require that the plaintiff prove that the victim would have been more likely than not to survive if not for the malpractice. A negligent defendant may be held liable for a substantial reduction in the victim’s chance of survival directly caused by the negligence.

Intervening and Superseding Causes

An intervening act is an independent act or a force of nature occurring aside from the defendant’s negligent act. When there is an intervening act, the scope of a defendant’s liability may be limited to harm resulting from the risks that made the defendant’s conduct tortious.

Yun v. Ford Motor Co. 一 An intervening and superseding cause, which is a cause that is unforeseeable or extraordinary, breaks the chain of causation.

Hairston v. Alexander Tank & Equipment Co. 一 An intervening act may not break the chain of causation if it was within the scope of the foreseeable risk that the defendant’s conduct created.

Derdiarian v. Felix Contracting Corp. 一 If an intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence, it does not break the causal connection. It does not matter that the precise manner of the accident or the exact extent of the injuries was not anticipated, but only that the general risk and character of the injuries were foreseeable. If the intervening act is extraordinary, not foreseeable, or independent or far removed from the defendant’s conduct, it may be a superseding act that severs the causal connection.

Watson v. Kentucky & Indiana Bridge & R.R. Co. 一 An intervening act that is merely unforeseeable does not sever the causal connection, but an intervening act that is so unexpected or extraordinary that the defendant could not or should not have anticipated it will preclude liability.

Fuller v. Preis 一 Suicide is not a superseding cause that precludes liability for negligence.

Damages in Torts

Under the eggshell skull rule, a tortfeasor takes a plaintiff as they are and may be liable for the full extent of the plaintiff’s injuries, including the aggravation of pre-existing conditions.

Bartolone v. Jeckovich 一 A defendant takes a plaintiff as they find them and may be liable for the aggravation of pre-existing conditions.

Jacque v. Steenberg Homes, Inc. 一 Punitive damages may be appropriate in intentional trespass cases even if there are no actual damages. Intentional trespass to land causes actual harm, even if that harm cannot be measured in mere dollars.

Joint Liability

One may be liable for injuries directly caused by the tortious conduct of another party if the tortious act was done in concert with the other party.

Bierczynski v. Rogers 一 Participation in a motor vehicle race on a public highway is an act of concurrent negligence imposing liability on each participant for injuries to a non-participant caused by the race, regardless of which participant directly inflicted the injury.

Coney v. J.L.G. Industries, Inc. 一 Shifting from contributory negligence to comparative negligence does not nullify the doctrine of joint liability.

Bartlett v. New Mexico Welding Supply, Inc. 一 A concurrent tortfeasor is not liable for the entire damage caused by concurrent tortfeasors when comparative negligence applies.

Bundt v. Embro 一 Multiple judgments cannot be satisfied against multiple defendants for the same tort when one judgment has already been satisfied.

Knell v. Feltman 一 Contribution may be enforced between concurrent tortfeasors even if there is not a joint judgment against them, so long as the parties are not intentional wrongdoers.

Slocum v. Donahue 一 Indemnification is appropriate when the indemnitee is derivatively or vicariously liable for the wrongful act of another party. Contribution and indemnity are mutually exclusive remedies.

Bruckman v. Pena 一 A defendant cannot be held liable for a plaintiff’s subsequent injuries, regardless of whether the damages can be apportioned between the two injuries.

Premises Liability

In some jurisdictions, a possessor owes a duty of reasonable care to all individuals other than trespassers. Other jurisdictions distinguish between licensees and invitees. A possessor owes a licensee (one who has express or implied permission to be on the property) a duty to protect them from dangers of which the possessor is aware. A possessor owes an invitee (one who is on the land for a materially beneficial purpose of the possessor) a duty to use reasonable care to protect them from both known dangers and those that would be revealed by an inspection of the property.

Carter v. Kinney 一 Generally, a possessor owes a trespasser no duty of care, a licensee a duty to address dangers of which the possessor is aware, and an invitee a duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by an inspection. A social guest is a subclass of licensee. An entrant becomes an invitee when they are invited by the possessor with the expectation of a material benefit from the visit, or when an invitation is extended to the public generally and the individual enters pursuant to the purposes for which the land was opened to the public.

Rowland v. Christian 一 A possessor of land owes a duty to others to manage their property as a reasonable person would, considering the probability of injury to others. A plaintiff’s status as a trespasser, licensee, or invitee may be considered, but it is not determinative.

Jasko v. F.W. Woolworth Co. 一 If the pattern in which one conducts business creates a dangerous condition, proper notice of that continuing condition may be inferred.

Professional Malpractice

Professionals such as lawyers and doctors generally have a duty to exercise as much care as a reasonable person in the same profession would exercise under similar circumstances. The proper standard of care must usually be established by expert testimony, unless the negligence was so grossly apparent that a layperson would recognize it without difficulty.

Hodges v. Carter 一 In a legal malpractice action, there is no liability when an attorney makes a mistake of law or an error of judgment in good faith, assuming that they used as much care as a reasonable attorney would have used in a similar situation.

Boyce v. Brown 一 A physician’s negligence in a medical malpractice action for departing from the proper standard of care must be established by expert medical testimony, unless the negligence is so grossly apparent that a layperson would recognize it without difficulty.

Morrison v. MacNamara 一 The locality rule for measuring a medical professional’s conduct against other members of the same profession in the same locality was intended to protect rural doctors without effective means of transportation and communication or the training and experience necessary to perform to the standard of urban doctors. Medical professionals are held to a national standard of care, rather than a local standard of care, when a community is not isolated from recent advances in the quality of care and the treatment of patients.

A therapist may have a duty of reasonable care to protect an identifiable and foreseeable victim if the therapist has determined that a patient poses a serious risk of specific violence.

Tarasoff v. Regents of Univ. of Cal. 一 One owes a duty of care to all persons who are foreseeably endangered by their conduct, with respect to all risks that make the conduct unreasonably dangerous. One may have a duty to avoid foreseeable harm by reasonably attempting to control the conduct of another person or warn of such conduct when a special relationship exists with the dangerous person or the potential victim, like the relationship between a therapist and their patient.

Social Hosts

A social host may have a duty to the public not to create foreseeable, unreasonable risks by serving alcohol to a guest when they know that the guest is intoxicated and will subsequently drive.

Kelly v. Gwinnell 一 A social host has a duty to the public not to create foreseeable, unreasonable risks by serving alcohol to guests who will subsequently drive. A host may be liable for injuries caused by a guest’s negligent driving when the host knew that the guest was intoxicated and would drive.

Injuries to Rescuers

A negligent actor may be liable for injuries sustained by a rescuer because rescue is a foreseeable consequence of negligence.

McCoy v. American Suzuki Motor Corp. 一 An injured rescuer may sue the party who caused the danger requiring the rescue, but they must show that the defendant’s wrongdoing proximately caused their injuries. A rescuer does not assume the risk so long as they do not act rashly or recklessly.

Wagner v. International Ry. Co. 一 Danger invites rescue, making rescue a foreseeable act. A tortfeasor may be liable for injuries sustained from a rescuer’s reasonable rescue attempt.

Negligent Infliction of Emotional Distress

There is no general duty to avoid negligently inflicting emotional distress, but there may be an exception if the emotional harm is connected to a physical harm or when one is closely related to a victim, was present at the scene, was aware that the victim was being injured, and suffered emotional distress beyond that which would be anticipated in a disinterested person.

Daley v. LaCroix 一 One may allege negligent infliction of emotional distress when a definite and objective physical injury is produced as a result of emotional distress proximately caused by the defendant’s negligence, regardless of whether there was a physical impact at the time of the mental shock. A defendant will not be liable for a hypersensitive mental disturbance unless the defendant had specific knowledge of the plaintiff’s unusual sensitivity.

Thing v. La Chusa 一 To recover damages for negligent infliction of emotional distress, one must be closely related to the victim, have been physically present at the scene of the injury-producing event, have been aware that it was causing an injury to the victim, and as a result suffer emotional distress beyond that which would be anticipated in a disinterested witness.

Defenses to Negligence

Common defenses to negligence include comparative fault, assumption of risk, and statutes of limitations. Under the comparative fault rule, responsibility is allocated between actors based on their respective degrees of fault. Under modified comparative fault, a negligent plaintiff may not recover damages if their negligence was equal to or greater than the defendant’s. A plaintiff may be barred from recovery if they had assumed the risk that caused their injuries. Statutes of limitations also bar claims after a certain period of time.

McIntyre v. Balentine 一 Under modified comparative fault, a negligent plaintiff may recover damages so long as their negligence remains less than the defendant’s, but their recovery will be reduced in proportion to their own negligence.

Rush v. Commercial Realty Co. 一 The defense of implied assumption of risk only applies when the plaintiff voluntarily encounters a known risk. The voluntary nature of the assumption of risk cannot be assumed when no reasonable alternative existed.

Blackburn v. Dorta 一 Implied assumption of risk is not an affirmative defense separate and apart from contributory negligence. Therefore, the principles of comparative negligence apply when the defense of implied assumption of risk is asserted.

Teeters v. Currey 一 Under the discovery doctrine, a statute of limitations in a medical malpractice action for the negligent performance of a surgical procedure does not begin to run until the plaintiff discovers or reasonably should discover the injury.

This outline has been compiled by the Justia team for solely educational purposes and should not be treated as an independent source of legal authority or a summary of the current state of the law. Students should use this outline as a supplement rather than a substitute for course-specific outlines.

Last reviewed August 2023

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Torts is the field of law governing liability for injuries caused by conduct that violates standards of care determined by courts. Because the relevant care standards generally are not specified in contracts, or by criminal statutes, tort law is at the core of the common law process. Subjects typically covered under torts include: intentional torts, negligence, nuisance, strict liability, and products liability.

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Teaching & Learning

Third edition of torts, an online, open casebook, expands with print edition.

Pairing of online and paper text allow faculty to customize contemporary curriculum, says Jonathan Zittrain

The teaching of torts is a cornerstone of a law school education, as studying the cases in which a wrong is addressed by the court remains fundamental to understanding our legal system. With the goal of making such tutelage accessible and available to a greater range of students, this year Torts! — one of the first online open casebooks offered through Harvard’s H2O platform — is now also available in the handy and portable form of, yes, an old-fashioned bound-paper text.

Leveraging the free, comprehensive open-source casebook created by Jonathan Zittrain ’95 , the George Bemis Professor of International Law at Harvard Law School, and Jordi Weinstock , lecturer on law at Harvard Law School, the two published Torts! Third Edition in March as the first in the Open Casebook series of high-quality, low-cost text books designed to make these primary texts affordable to law students across the United States launched in partnership with MIT Press.

“The MIT Press is committed to leveraging its role as an academic publisher to increase the impact and accessibility of scholarship,” said Amy Brand, director and publisher, the MIT Press. “We are proud to partner with the Harvard Law School Library on the publication of Torts!, the inaugural book in the Open Casebook Series, and make a high-quality, low-cost textbook more readily available to students throughout the United States.”

The move, explained Zittrain, is designed to complement the free and comprehensive online version accessible accessible on the H2O platform , enabling students “to have a book you can put in your backpack and read in a cafe and bring to class, especially if the class doesn’t allow laptops.”

Noting that too many students were already using printouts of the online casebook, he cited the “bread-and-butter impact” of providing a physical text “that’s reasonably formatted and bound, rather than something held together with a big alligator clip that came off of some poor inkjet printer.”

Torts! was chosen to launch this series for several practical reasons. A required text for first-year law students, Torts! maps the progression of the law of torts through the language and examples of public judicial decisions in a range of cases. As a primary text, it was also among the first books published on the H2O open casebook platform, originally made accessible in 2012. Also, as Zittrain explained, the book had been road-tested.

 “We’ve had a chance to update the syllabus year after year,” he said, using the open casebook features to remix the text — “swapping and editing” content. Now maintained by the  Library Innovation Lab  at the  Harvard Law School Library  (where Zittrain serves as vice dean for Library and Information Resources) the H2O platform was first developed by Berkman Klein Center for Internet & Society, with support from the Harvard Law School Library. Dedicated to expanding the bounds of open-access legal education, it currently offers more than 350 casebooks and access to more than 6,000 legal documents.

“We wanted to see how the two formats could work together,” said Zittrain. “It also seemed a good idea to have the text for a required first-year class as one of the first books, because those are the books that the students don’t have a choice about buying.”

Although by its nature more limited than the online version, the bound paper version of the book has an advantage over traditional textbooks in that it is modeled on the course as taught by Zittrain and Weinstock. “The traditional textbook has 400 cases. They’re very heavily edited, and you read them disjointedly,” said Weinstock. “You may get a case that has 7,000 words, but you’ll only have 300 words from that case in the book.”

We’re trying to have the best book that we would want to teach. And we hope that other people are interested in using it as well. But we’re also hoping that it inspires them to think critically about the materials they use and to be more flexible. Jordi Weinstock

By comparison, Torts! offers much more complete versions of the cases that Zittrain and Weinstock teach — in effect a snapshot of their class. And while professors are still invited to utilize the open-source casebook to customize their own classes, those who choose the bound version of the book will find a syllabus already tested at the highest level.

While Torts! covers the canon of tort law — the “30 or so cases that are in every textbook,” according to Weinstock — its authors felt free to be selective. “It focuses the field of study around the topic, not just on a cannon but around the wonderful variations that come up depending on the interests of the teacher and their students,” said Weinstock. As an example, he noted that nuisance law is skipped in Torts! because the pair don’t include it in their class. However, if a professor wanted to include it, the material is available in the online version.

The other advantage of the online open casebook, of course, is that entire cases, along with relevant commentary, are presented. In addition, the online version can be made more easily accessible to vision-impaired students via web accessibility software (aka “screen readers”). Also, its formatting allows for constant updating with new cases and commentary.

“It’s amazing to be talking with colleagues about an interesting case that just came down in Louisiana and to be able to say, ‘Here’s how I introduced it into the syllabus,’ and with three clicks to be able to tweak it while still having the book that’s available for the whole term,” said Weinstock.

Such customization, stressed both teachers, makes the pairing of the online and the paper texts unbeatable. Said Zittrain, “It’s a great way for a faculty member who wants a somewhat updated contemporary curriculum to have one that we are able to incrementally modify.”

“Jonathan has been making change around open legal teaching for over a decade now, so it is fitting that he and Jordi have written the first book in a series that will continue to explore what open casebooks can be,” said Jack Cushman, director of the Library Innovation Lab. “To make a quality print casebook like Torts! available for just $65 while the digital version remains free and open on H2O is something we’re really proud of, and we’re grateful for MIT Press’ partnership in taking this leap with us. Every 1L has to take a torts class, and most torts casebooks on the market cost over $200. We hope this print book and the accompanying digital version can play a part in lowering the cost of casebooks for these students.”

“We’re trying to have the best book that we would want to teach,” said Weinstock. “And we hope that other people are interested in using it as well. But we’re also hoping that it inspires them to think critically about the materials they use and to be more flexible.”

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Torts: Cases and Contexts Volume 1

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Eric E. Johnson, University of North Dakota School of Law

Copyright Year: 2016

Publisher: CALI's eLangdell® Press

Language: English

Formats Available

Conditions of use.

Table of Contents

Part I: Preliminaries

• 1. Basic Concepts
• 2. An Overview of Tort Law

Part II: Negligence

• 3. Introduction to Negligence
• 4. An Example of a Negligence Case
• 5. When and to Whom is a Duty of Care Owed
• 6. Breach of the Duty of Care
• 7. Actual Causation
• 8. Proximate Causation
• 9. Existence of an Injury
• 10. Affirmative Defenses to Negligence

Part III: Liability Relating to Healthcare

• 11. Common Law Liability in the Healthcare Context
• 12. ERISA Preemption

Ancillary Material

• Ancillary materials are available by contacting the author or publisher .

About the Book

Plain-spoken and convivial, this casebook makes a deliberate effort to explain the law, rather than to provide a mere compilation of readings and questions. Simple concepts are presented simply. Complex concepts are broken down and accompanied by examples and problems.

By being clear and straightforward, the casebook aims to quickly get students to the point where they can navigate regions of gray and build nuanced arguments. The book is written from the conviction that when students stop to puzzle over something, it should be because the law itself puzzles, not because the book obfuscates.

Students describe the book as easy to read. A key aim is context, with explanations of how pieces of doctrine fit into the bigger picture. There is also a continual effort to plug doctrine into the real world of practice, getting students to think about litigation strategy and tactics.

Another key feature is a high-degree of organization. Doctrine is explained upfront, independent of and before the cases. After the cases, there is no notes-and-questions mishmash. Historical notes, check-your-understanding questions, questions to ponder, and problems are all separately labeled as such.

The readings are rich with variety. The classic cases are here, of course. But there are also atypical readings that allow students to see tort law from different perspectives, including an opening statement, a closing argument, administrative-enforcement letters, an excerpt from a novel, and an opinion on tribal law from a Navajo court. Many selections are also startlingly modern, with facts involving texting-and-driving, alcoholic energy drinks, Facebook libel, suddenly accelerating Toyotas, and the misery of a six-hour tarmac delay.

About the Contributors

Eric E. Johnson is Associate Professor of Law at the University of North Dakota School of Law. He received his B.A. from the Plan II Honors Program at the University of Texas at Austin and his J.D. from Harvard Law School. Eric practiced law in Los Angeles as an associate at Irell & Manella, LLP and as in-house counsel for Fox Cable Networks. In addition to teaching at the University of North Dakota, Eric has taught at Texas Tech University School of Law as a visiting professor, at Whittier Law School and Pepperdine University School of Law as an adjunct professor, and at Harvard Law School as an instructor of Legal Reasoning and Argument. Eric archives course materials, papers, and old exams at ericejohnson.com.

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Legal Dictionary

The Law Dictionary for Everyone

Tort law refers to the set of laws that provides remedies to individuals who have suffered harm by the unreasonable acts of another. The law of tort is based on the idea that people are liable for the consequences of their actions, whether intentional or accidental, if they cause harm to another person or entity. Torts are the civil wrongs that form the basis of civil lawsuits. To explore this concept, consider the following tort law definition.

Definition of Tort Law

• An area of law that deals with the wrongful actions of an individual or entity, which cause injury to another individual’s or entity’s person, property, or reputation, and which entitle the injured party to compensation.

Origin of Tort

1350-1400        Middle English (injury, wrong)

What is Tort Law

Tort law is the body of laws that enables people to seek compensation for wrongs committed against them. When someone’s actions cause some type of harm to another, whether it be physical harm to another person, or harm to someone’s property or reputation, the harmed or injured person or entity may seek damages through the court.

Damages are a monetary award ordered by the court to be paid to an injured party, by the party at fault. Damages may be awarded in compensation for loss of, or damage to, personal or real property , for an injury, or for a financial loss.

The types of damages that may be awarded by the court for civil wrongs, called “tortious conduct,” of an individual or entity include:

• Reimbursement for property loss or property damage
• Medical expenses
• Pain and suffering
• Loss of earning capacity
• Punitive damages

Tort Liability

The legal term tort refers to an action in which one person or entity causes injury, harm, or damage to another person or entity. A tort liability may occur as a result of intentional acts, a negligent act, a failure to act when the individual had a duty to act, or a violation of statutes or laws. The individual who commits the tortious act (the act leading to the tort liability claim) is called the “ tortfeasor ,” and is the defendant in this type of civil lawsuit . Such a defendant is generally held liable for damages or harm suffered by the plaintiff , as a result of the defendant’s acts.

In many tort cases, the damages or injury suffered by the plaintiff do not have to be physical injury. A defendant in a tort liability case, who is found to be liable for his or her tortious acts, may be ordered to pay damages for harm, such as violation of personal rights, pain and suffering, and emotional distress .

Types of Tort

There are a number of specific types of tort that form the basis of the majority of civil lawsuits in the United States. These include, among others:

• Intentional Infliction of Emotional Distress
• Products Liability

Tort law divides most specific torts into three general categories:

• Intentional Torts – the causing of harm by an intentional act, such as intentionally conning someone out of his money.
• Negligent Torts – the causing of harm through some negligent act, such as causing a car accident by running a red light.
• Strict Liability Torts – the result of harm incurred due to the actions of another, with no finding of fault by the defendant.

Additional and separate specific torts include:

• Defamation Torts
• Nuisance Torts
• Privacy Torts
• Economic Torts

Intentional Torts

Intentional torts are acts committed with the intent to harm another, or to deliberately interfere with an individual’s rights to bodily safety, emotional tranquility, privacy, control over property, freedom from deception, and freedom from confinement. Intentional torts commonly include such issues as assault and/or battery, false imprisonment , invasion of privacy , theft , property damage, fraud or other deception, and trespassing .

Intent is a key issue in proving an intentional tort , as the injured party, called the Plaintiff, must prove to the court that the other party, called the Respondent or Defendant, acted intentionally, and knew that his actions could cause harm. In some cases, the Plaintiff need only prove that the Defendant should have known that his actions could cause harm. Many intentional torts may also be charged as criminal offenses.

Tort examples:

Raymond stops by the local bar for a few drinks before he heads home after work. After drinking four cocktails, Raymond gets into his car, and runs a stop sign, crashing into another car, seriously injuring its occupants. Although Raymond might argue that he didn’t know he would hurt someone, it is expected that Raymond should have known that driving under the influence is likely to cause harm, or to kill another person.

Because Raymond intentionally drank alcohol, knowing he planned on driving home, and any reasonable person should know that drinking and driving could result in harm, he has committed an intentional tort. In addition, Raymond may be criminally charged with felony DUI.

Negligent Torts

The acts leading to claims of harm or injury in negligent torts are not intentional. There are three specific elements that must be satisfied in a claim of negligence:

• The defendant must have a duty or owe a service to the plaintiff or victim
• The defendant must have failed that duty, or violated a promise or obligation to the plaintiff
• The plaintiff must have suffered an actual loss, injury, or damages that were directly caused by the plaintiff’s actions, or failure to act

Strict Liability Torts

Strict liability refers to the concept of imposing liability on a defendant, usually a manufacturer, without proving negligent fault, or intent to cause harm. The purpose of strict liability torts is to regulate activities that are acknowledged as being necessary and useful to society, but which pose an abnormally high risk of danger to the public.

Such activities may include transportation and storage of hazardous substances, blasting, and keeping certain wild animals in captivity. The possibility of civil lawsuits under strict liability torts keeps individuals or corporations undertaking such dangerous acts diligent in taking every possible precaution to keep the public safe.

Suing Under Strict Liability Tort

In a strict liability lawsuit, the law assumes that the supplier or manufacturer of the product was aware the defect existed before the product reached the consumer. Because of this, the plaintiff need only prove that harm or damages occurred, and that the defendant is responsible. To successfully bring a civil lawsuit under a strict liability tort, the following elements must be proven:

• The named defendant is the manufacturer of the defective product
• The product was defective when the plaintiff purchased it
• The defect was present when the defendant sold the product
• The defect caused the plaintiff’s injuries or damages
• The injuries or damages caused by the product’s defect were reasonably foreseeable by the defendant

A plaintiff in a strict liability lawsuit may be awarded additional damages if he can prove that the defendant knew about the defect when the product was sold to consumers.

Amanda buys a new car from her local Zoom Auto dealership. Only three months later, Amanda noticed her brakes felt soft, so she took her car to dealer’s repair shop. They told her she just needed new brake pads, replaced them, and sent Amanda on her way. A month later, while Amanda was driving on a busy freeway, her brakes failed, and she crashed into another car. Amanda’s car was very badly damaged, and Amanda suffered a broken arm and a concussion.

Amanda discovers, while researching the brake problem she had been having with her car, that this particular model has had brake problems since it was first released for sale to the public. In digging deeper, Amanda discovers that Zoom Auto knew the car’s brake system was defective before they sold the cars, but determined it would be too expensive to bring them all back into the factory to change out the brake systems.

In suing Zoom Auto, Amanda must use this information to prove:

• Zoom Auto manufactured the defective vehicle
• The car’s brake system was defective when she bought the car
• The car’s brake system was defective when Zoom Auto sold the car to Amanda
• The brake defect caused Amanda’s injuries, as well as the severe damage to her car
• It was reasonably foreseeable that selling a car with a defective brake system would cause injury to consumers
• Zoom Auto knew about the defective brake system in this particular model car before they sold the vehicles, yet chose to sell them anyway, in blatant disregard of the safety of consumers

Federal Tort Claims Act

Historically, under the legal doctrine of “ sovereign immunity ,” people could not sue the government, unless the government gave them permission. This left people who, for instance, were run over by the mailman, slipped in a puddle caused by a leaky water fountain in the passport office, or were hit by a car driven by an FBI agent who was talking on his phone, out in the cold.

In 1946, Congress passed the Federal Tort Claims Act, giving people the right to sue the U.S. government in federal court for tortious acts committed by individuals acting in their rolls as federal government employees. This permission is limited, however, maintaining certain protections for the government.

Under the Federal Tort Claims Act (“FTCA”), the U.S. government is liable for the tortious acts of individuals acting on the government’s behalf, in the same way a private party would be liable in similar circumstances. The amount of damages that may be awarded in such a lawsuit, however, is limited, with no allowance for punitive damages, or interest accumulated prior to the date of judgment.

The Federal Tort Claims Act also exempts the federal government from certain specified torts, though this protection is not extended to intentional torts committed by law enforcement officials. This means that individuals harmed by the unlawful actions of law enforcement officials may bring a civil lawsuit against the agency for damages.

Filing a Claim under the FTCA

The FTCA specifies that anyone wishing to file a tort claim against the United States must do so, in writing to the appropriate federal agency, within two years of the date the tort occurred. This means that the statute of limitations on filing an administrative claim under the FTCA is two years.

Any individual wishing to file an administrative claim for reimbursement for damages or injury must demonstrate that:

• His property was damaged, or he was injured, by the actions of an employee of the federal government
• The federal employee was acting in his official capacity at the time the damage or injury occurred
• The federal employee acted wrongfully, or negligently
• The federal employee’s wrongful or negligent act caused the plaintiff’s damages or injury

In most tort cases, an individual who desires to file a claim under the FTCA must first file an administrative claim with the federal agency that employs the employee that caused the damages. This requires filling out the required forms, and providing documents or other evidence supporting the claimant’s position. Forms and additional information can be obtained from the Department of Justice website.

Once an administrative claim has been filed, the agency has six months to respond to the claimant. If the claimant is not happy with the agency’s response or decision, he has six months from the date the response was mailed to him to file a civil lawsuit under the FTCA. In the event the federal agency does not respond to the claimant within the six month time frame, the claimant may go ahead and file a civil lawsuit, but his six-month statute of limitations does not begin to run until the agency actually provides a response or decision.

When filing a claim under the FTCA, the lawsuit must be filed in the U.S. District Court, which is the official name of the federal court, in the district where the tortious act occurred, or where the plaintiff lives.

Tort Reform

The term tort reform has been bandied about as a hot-button issue since the congressional elections in 2010. The average American citizen does not understand what tort reform actually means, and has no idea that it has no bearing on any laws, but is a general acknowledgement that the amount of damages awarded to victorious plaintiffs in tort lawsuits has grown too large.

In past decades, juries have sought to sufficiently reimburse plaintiffs for tortious wrongs committed against them, as well as to punish many defendants for actions the jury considers blatant and egregious . Many proposed tort reform acts have proven to be ill considered, however, as they seek to make it more difficult for people to file civil lawsuits, to make it more difficult for plaintiffs to obtain a jury trial on a civil matter, and to cap the amount of money plaintiffs can be awarded in various types of civil lawsuits.

While some people consider awards made to certain victorious plaintiffs to be exorbitant, the truth is, some of these plaintiffs experience seriously increased costs of living, medical expenses, loss of income, and loss of quality of life, due to the tortious behaviors of others. An award of damages in the millions of dollars range may sound like a large award, but when considering it spread over the plaintiff’s lifetime, it is often merely enough to get by.

Tort Law and Tort Reform Under Scrutiny

Tort reform has come under public scrutiny, as many people find publicized awards in civil lawsuits to be shockingly large. One of the most famous tort lawsuits in recent history in the case of a 79-year old woman who sued McDonald’s restaurants when she spilled her coffee, and was burned.

Liebeck v. McDonald’s Restaurants

In 1992, 79-year old Stella Liebeck spilled a cup of McDonald’s coffee in her lap, sustaining third degree burns to both legs. The severity of the full-thickness burns required skin grafts. This involved stripping skin from other areas of Liebeck’s body to graft onto the burned areas which were no longer able to grow skin on their own, leaving her with even more wounds to heal. When McDonald’s denied Liebeck’s request to pay her medical bills, she filed a civil lawsuit.

During the course of the case, it was discovered McDonald’s had received hundreds of other complaints from customers complaining that their coffee had caused severe burns, and that the corporation ’s operations manual specified the coffee was to be kept at 180-190 degrees Fahrenheit. It is known and accepted, by the scientific and medical communities, that liquid at that temperature, if spilled onto a person, causes third degree burns in three to seven seconds.

A jury awarded Liebeck $200,000 in compensatory damages to pay for medical bills and other related expenses. Because it was clear the company knew its coffee was kept at a dangerously high temperature, and was therefore likely cause serious injury, the jury also awarded Liebeck $2.7 million in punitive damages, which amounted to the company’s sales revenue from just two days of coffee sales.

While many proponents of tort reform view this case as a supreme example of a frivolous lawsuit with a shockingly high award, the truth is, McDonald’s knew its coffee could cause third degree burns, yet continued to specifically instruct its restaurant employees to keep and serve it at that temperature. Ms. Liebeck’s injuries were severe, her painful third degree burns requiring skin grafts. McDonald’s was given an opportunity to settle the matter out of court, but they refused to do so.

Ultimately, the judge reduced the amount awarded by the jury to $640,000, and the case was appealed by McDonald’s, which finally settled for an undisclosed amount before the appeal concluded. In this case, the current tort system worked property, as it prompted McDonald’s to settle the case, quite possibly because of a concern that the award would be boosted back up to the original amount awarded by the jury.

Related Legal Terms and Issues

• Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
• Criminal Offense – An act committed by an individual that is in violation of the law, or that poses a threat to the public.
• Damages – A monetary award in compensation for a financial loss, loss of or damage to personal or real property, or an injury.
• Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
• Entity – An individual, company, association, trust , or other organization that is legally recognized in the eyes of the law. A legal entity is able to enter into contracts, take on obligations, pay debts, be sued, and be held responsible for its actions.
• Personal Property – Any item that is moveable and not fixed to real property.
• Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
• Punitive Damages – Money awarded to the injured party above and beyond their actual damages. Punitive damages, also referred to as “exemplary damages,” are ordered for the purpose of punishing the wrongdoer for outrageous misconduct in a civil matter.
• Real Property – Land and property attached or fixed directly to the land, including buildings and structures.

Primary tabs

A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, "injury" describes the invasion of any legal right, whereas "harm" describes a loss or detriment in fact that an individual suffers. 1  

The primary aims of tort law are to provide relief to injured parties for harms caused by others, to impose liability on parties responsible for the harm, and to deter others from committing harmful acts. Torts can shift the burden of loss from the injured party to the party who is at fault or better suited to bear the burden of the loss. Typically, a party seeking redress through tort law will ask for damages in the form of monetary compensation. Less common remedies include injunction and restitution. 

The boundaries of tort law are defined by common law and state statutory law. Judges, in interpreting the language of statutes, have wide latitude in determining which actions qualify as legally cognizable wrongs, which defenses may override any given claim, and the appropriate measure of damages. Although tort law varies by state, many courts utilize the  Restatement of Torts (2nd)  as an influential guide. 

Torts fall into three general categories: intentional torts ( e.g. , intentionally hitting a person); negligent torts ( e.g. , causing an accident by failing to obey traffic rules); and strict liability  torts ( e.g. , liability for making and selling defective products - s ee Products Liability ). Intentional torts are wrongs that the defendant knew or should have known would result through his or her actions or omissions. Negligent torts occur when the defendant's actions were unreasonably unsafe. Unlike intentional and negligent torts, strict liability torts do not depend on the degree of care that the defendant used. Rather, in strict liability cases, courts focus on whether a particular result or harm manifested. 

There are numerous specific torts including  trespass ,  assault ,  battery ,  negligence ,  products liability , and  intentional infliction of emotional distress . There are also separate areas of tort law including nuisance , defamation , invasion of privacy , and a category of economic torts .

The law recognizes torts as civil wrongs and allows injured parties to recover for their losses. Injured parties may bring suit to recover  damages  in the form of monetary compensation or for an  injunction , which compels a party to cease an activity. In certain cases, courts will award punitive damages in addition to compensatory damages to deter further misconduct. 

In the vast majority of tort cases, the court will award compensatory damages to an injured party that has successfully proven his or her case. 10 Compensatory damages are typically equal to the monetary value of the injured party's loss of earnings, loss of future earning capacity, pain and suffering, and reasonable medical expenses. Thus, courts may award damages for incurred as well as expected losses. 

When the court has an interest in deterring future misconduct, the court may award punitive damages in addition to compensatory damages. For example, in a case against a manufacturer for a defectively manufactured product, a court may award punitive damages to compel the manufacturer to ensure more careful production going forward. 

In some cases, injured parties may bring suit to obtain an injunction  rather than monetary relief. The party seeking an injunction typically must prove that it would suffer considerable or irreparable harm without the court's intervention.

Distinguishing Torts from Other Bases of Liability

Torts are distinguishable from crimes, which are wrongs against the state or society at large. The main purpose of criminal liability is to enforce public justice. In contrast, tort law addresses private wrongs and has a central purpose of compensating the victim rather than punishing the wrongdoer. 2  Some acts may provide a basis for both tort and criminal liability. For example, gross negligence that endangers the lives of others may simultaneously be a tort and a crime. 3  

Some actions are punishable under both criminal law and tort law, such as battery. In that case, ideally tort law would provide a monetary remedy to the plaintiff, while criminal law would provide rehabilitation for the defendant, while also providing a benefit to society by reforming the defendant who committed assault.

Tort law is also distinct from contract law. Although a party may have a strong breach of contract case under contract law, a breach of contract is not typically considered a tortious act. 4

Incomplete List of Torts and their Prima Facie Cases ( D=defendant ; P=plaintiff )

• D had the intent to invade the land
• D invaded land
• P possessed the land and did not give consent to D
• D intends to cause a contact with P via D’s touch
• D’s touch is harmful or offensive (objective test)
• Causation b/w intentional touch & harm (2b & 2c)
• P does not consent to the touch
• D intentionally acts so as to cause P to apprehend (not fear) imminent harmful or offensive contact with P
• D’s act causes P reasonably to apprehend (not necessarily fear) such a contact 

False Imprisonment

• D willfully acts . .
•  . . . intending to confine P w/o P’s consent & w/o authority of law
• D’s act causes P’s confinement
• P is aware of P’s confinement

Intentional Infliction of Emotional Distress  

• D’s conduct is outrageous
• D acts for the purpose of causing the victim emotional distress so severe that it could be expected to adversely affect mental health
• D’s conduct causes such distress
• D owed P a duty of reasonable care
• D breached that duty
• P suffers an injury
• D’s breach caused P’s injury

Negligence Per Se

• Statute or administrative created a duty
• P is in class of people protected by the duty statutorily imposed on D
• D violated that statute or administrative regulation
• The Statute was intended to prevent the type of injury suffered

Res ipsa loquitur negligence : P must prove 3 things:

• The incident was of a type that does not generally happen w/o negligence
• It was caused by an instrumentality solely in D’s control
• P did not contribute to the cause

Private Nuisance

• D's action is an intentional non-trespassory activity
• D's action is a recurring activity
• D's action unreasonably interferes w/P’s right to use & enjoy his land

Public Nuisance

• Injury resulting from intentional, unreasonable interference w/right common to the public
• The injury singles out P from the rest of the public

Products Liability

• D sells a product that P uses
• D is the commercial seller of such a product
• When D sold the item, the item was defective
• The defect was an actual and proximate cause of P’s injury

Inducement of contract  

• Valid contract b/w P & third party (a contract that is not currently voided)
• D has knowledge of a valid contract
• D induces third party to disrupt the contract with P
• D’s inducement causes harm to P
• P must show that the inducement was not justified
• Restatement (Second) of Torts § 7
• Dobbs' Law of Torts § 1
• See Dobbs' Law of Torts § 1

Menu of Sources

Federal material, u.s. constitution and federal statutes.

• U.S. Code: 28 U.S.C., Chapter 171 - Federal Torts Claim Act (governs tort claims against the U.S.)
• CRS Annotated Constitution

Federal Judicial Decisions

• Recent Torts Law Decisions
• liibulletin Oral Argument Previews
• U.S. Circuit Courts of Appeals: Recent Torts Law Decisions

State Material

State judicial decisions.

• Commentary from liibulletin-ny
• Appellate Decisions from Other States

Other References

Key internet sources.

• Personal Injury (Nolo)
• Torts Notebook - Korematsu Law Library

Useful Offnet (or Subscription - $) Sources

• Good Starting Point in Print: Prosser and Keeton, Hornbook on Torts , West Group (1984)

Related Topics

Category: Accidents and Injuries

• accidents and injuries
• wex articles

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Law of Torts - Notes, Case Laws And Study Material

Master the law of torts: notes, case laws, and study material. your comprehensive guide to tort law studies.

Law of Torts deals with civil wrong. This is basically a breach of a duty imposed by law, which gives rise to a civil right of action for a remedy not exclusive to any other area of law. The Law of torts came to India through England. In 1065 England was conquered by Normans, who were the french-speaking people of Normandy, a region of France.

After the Norman Conquest, French become the spoken language in the courts in England, and thus many technical terms in English Law owe their origin to French, and tort is one of them. The word tort is based on the idea that everyone in society has certain rights. The tort law's purpose is to enforce the rights and duties.

Important articles and study material on the Law of torts – Click on the link to Read.

• An Introduction to Tort Law
• 1000+ Detailed Questions MCQ Test Series for Competitions (Redirects to Law Aspirants)
• Essentials of the Law of Torts | Explained
• Pigeon Hole Theory – Salmond's Theory of Law of Torts
• Case Analysis: Donoghue v. Stevenson 1932
• 13 Landmark Decisions in Indian Tort Law | Explained
• Five Important Legal Maxims in Law of Torts

All you need to know about False Imprisonment

• Malicious Prosecution: Essentials and Defence
• The Law of Defamation: Kinds, Essentials and Defences

Defamation under the Law of Torts

• Volenti non fit injuria; Concept, Meaning and Case Laws
• Act of God (Vis major) in Tort Law
• Novus Actus Interveniens: Meaning, Elements and Exceptions
• Remoteness of Damages
• Tortious Liability: Conditions and Constituents
• Tortious Liability: Negligence
• Relevancy of Motive in Tortious Liability
• Liability of the Administration; Concept and Explanation
• Principle of Absolute Liability: Evolution and LG Polymers Vizag
• No-Fault Liability under the Motor Vehicles Act, 1988
• Doctrine Of Sovereign Immunity: The Development In India
• Concept of Negligence in The Sphere of Civil Law
• Nuisance under Law of Torts: Concept and Explanation
• Medical and Professional Negligence
• Trespass to Person: Assault, Battery and False Imprisonment
• Parties & their Capacities to Sue & be Sued in Tort Law: Overview
• History and Development of Consumer Protection Laws in India
• Intent and Reasons Behind the Consumer Protection Act 1986
• Important Definitions Under the Consumer Protection Act
• Agencies Created for Consumer Redressal: Overview
• How to File a Consumer Complaint: Step-by-Step Guide

Law of Torts Mains Question Answer Series: Important Questions for Judiciary, APO & University Exams

• Law of Torts Mains Question Answer Series Part I
• Law of Torts Mains Question Answer Series Part II
• Law of Torts Mains Question Answer Series Part III
• Law of Torts Mains Question Answer Series Part IV
• Law of Torts Mains Question Answer Series Part V
• Law of Torts Mains Question Answer Series Part VI
• Law of Torts Mains Question Answer Series Part VII
• Law of Torts Mains Question Answer Series Part VIII

Other Important Articles

• Damnum Sine Injuria and Injuria Sine Damnum
• Assault, Battery and Mayhem – Trespass to the Person
• General Defences – Defence Against Tortious Liability

Innuendo: Origin, Meaning and Explanation

• Vicarious Liability – Concept, Origin and Relations governed by it
• Rules of Strict and Absolute Liability
• Absolute Liability: A Journey from Strict Liability
• Contributory and Composite Negligence
• Remedies in Torts

Doctrine of Respondeat Superior

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Related News

Top 5 Important Cases to Understand the Basics of Torts

• Law of Torts Subject-wise Law Notes
• August 17, 2020

Introduction

The word ‘Tort’ is of French origin and is derived from the Latin word ‘tortum’ which means to twist and implies a twisted conduct . The word tort is also similar to a Sanskrit word ‘jimha’ which means ‘crooked ’. ‘Jimha’ was used in the ancient Hindu Law Text which meant a ‘tortious or fraudulent conduct.’ Tort is a civil wrongful act, committed against a person or a property, either intentional or negligent.

According to Prof. Winfield , “Tortious liability arises from the breach of a duty primarily fixed by law which results in an infringement of private legal right of another end, for which, civil action for unliquidated damages, injunction, specific restitution of property or even self-help, as the case may be, can be maintained.”

If a tort occurs, the law permits the injured party to seek to recover damages equal to the value of the injury. Damages are awarded in an effort to make the injured party whole again. Money is the common form of damages which is used to compensate the injury caused. Though money cannot always make the injured party whole again, nevertheless it can assist in rectifying many things. The concept of reasonable care underlies tort law. The court tries to compensate a victim for harm suffered from another person who did not take reasonable care.

Let us take an example. A drives his car carelessly because of which it mounts the pavement and hits B, a pedestrian, causing B personal injuries. The act is A driving the vehicle. The act has caused damage to B the damage was caused due to carelessness of A. Therefore A will be liable for tort and B will be able to recover damages.

Essential of Torts

1. There must be a wrongful act or omission on the part of person

2. That wrongful act or omission must result in legal damage to another

3. The wrongful act or omission must be of such a nature as to give rise to a legal remedy.

Now, to further delve into some of the ingredients of Torts let us look into some of the important judgments under Tort Law.

Municipal Corporation Delhi vs. Subhagwanti, 1966

The case of Municipal Corporation Delhi vs. Subhagwanti , 1966 (AIR 1966 SC 1750)[1] deals with one of the most important aspects of Torts that is ‘negligence’ . Negligence signifies failure to exercise a particular standard of care which the doer as a reasonable man should have exercised in particular situation or circumstance.

In this case, a clock tower collapsed in Chandni Chowk, Delhi causing death of many people. The structure was 80 years old whereas its normal life was to be 40-45 years. The municipal corporation of Delhi was responsible for the structure and therefore was held liable. The doctrine res ipsa loquitur (things speak for itself) was applied to this case as according to the facts of the case the Municipal Corporation was solely responsible for the ownership and control of the clock tower and owned the duty of care to the deceased. Thus the corporation was held liable for tort due to negligence.

Ashby vs. White, 1703

The case Ashby vs. White, 1703 2 Lord Raym 933 [2] , brings light on the legal maxim ‘ injuria sine damno .’ There are also cases where a conduct is actionable even though no damage has been caused. In this leading case, the defendant, a returning officer, wrongfully refused to register a duly tendered vote of the plaintiff who was a qualified voter. The candidate for whom the vote was tendered was elected and hence no loss was suffered by the rejection of the plaintiff’s vote.

The plaintiff bought an action for damages against the defendant. The court awarded him 5 Euros on the ground that the violation of the plaintiff’s legal right for which he must have a remedy and was actionable without proof of pecuniary damage. The Chief Justice contended that the plaintiff ought to be allowed to recover, because the right to vote is a common law right and the obstruction to cause that right must give rise to a cause of action.

The idea of injuria sine damno is also commonly used in the tort of trespass. For e.g. if A walks across B’s land without B’s permission then A will commit the tort of trespass to land, even though he causes no damage to the land.

Bhim Singh vs. State of Jammu & Kashmir, 1985

The case of Bhim Singh vs. State of Jammu and Kashmir , 1985 (AIR 1986 SC 494) [3] deals with another important aspect under Tort law which is ‘false imprisonment’ (intentional confinement, of another person within fixed boundaries). When it is shown that a person is arrested with mischievous and malicious intent the court has the authority to monetarily compensate the victim.

According to the facts of the case, Mr. Bhim Singh an MLA of Jammu and Kashmir was arrested and detained by the police and was deliberately prevented from attending the sessions of the legislative assembly. He was not produced before the magistrate even after 4 days of his detention. When his whereabouts were not known his wife filed an application in the Supreme Court under Habeas Corpus.

On inquiry the court came to a conclusion that the police had arrested him illegally and with a false and malicious intent thereby violating his constitutional rights. The court held that, police who are the custodians of law and order should have the greatest respect for personal liberty and should not engage in any act of lawlessness. Hence, Mr. Bhim Singh must be adequately compensated for violating his basic legal rights as a member of a legislative assembly.

Gloucester Grammar School Case

A common question which arises in Tort law is- how is justice served when damaged is caused to a person without any legal injury? The answer to this question lies in the Gloucester Grammar School Case [4] . In this case, the defendant was a teacher in the plaintiff’s school. But due to some disputes, he had set up a rival school to that of the plaintiff’s with the result that the plaintiffs were required to reduce the tuition fees of their school as the students from the plaintiff’s school shifted to the defendant’s school as he was popular among students for his teaching.

The plaintiff sued the defendant for the monetary loss caused. It was held that plaintiffs had no cause of action against the defendant on the ground that bonafide competitions cause no action, whatever damages it may cause. Compensation cannot be granted as there was no infringement of any legal right.

So a situation where damage is caused without any legal injury is known as ‘ damnum sine injuria ’ which means ‘injury caused without any actual loss.’ So a person who suffers damage without any legal right being violated is not titled to compensation.

Mayor of Bradford vs. Pickle, 1985

In the case of Mayor of Bradford vs. Pickle , 1985 [5] the petitioner had water springs on his land through which water was supplied to the entire city. Adjacent to it was the defendant’s land. Under the defendant’s land were natural reservoirs which supplied water to the plaintiff’s springs. However, the defendant sank a shaft into his land which reduced the amount of water flowing into the plaintiff’s springs. The plaintiff contended that the defendant’s action was with a malicious intent and hence they were titled to injunctions.

The issue raised in this case was, can a use of property which is legal if due to a proper motive become illegal because it is promoted by a motive which is malicious? The court held that the defendant being the owner of his land can divert or restrict the water flow according to his own wish and it is legal to do so. So the motive behind this act becomes irrelevant as far as the action is legal. Therefore, it was confirmed that the intention behind the act does not matter as far as the act is within the ambit of legality.

Thus, we have seen the above five important judgments which highlight the basics of Torts. Negligence, injuria sine damno, false imprisonment, damnum sine injuria are some of the common but very important ingredients under Tort law among others. As Torts deal with the infringement of the most basic legal rights of an individual, Tort law forms the very base of the legal field whose principles are used to form laws for other severe crimes.

For more notes on Law of torts, Click Here.

For law notes, Click Here.

[1] Municipal Corporation Of Delhi vs. Subhagwanti & Others(With … on 24 February, 1 1966 AIR 1750, 1966 SCR (3) 649 https://indiankanoon.org/doc/706862/

[2] Ashby vs. White, 1703 2 Lord Raym 933 https://www.casebriefs.com/blog/law/torts/torts-keyed-to-prosser/civil-rights/ashby-v-white/

[3] Bhim Singh vs. State of Jammu and Kashmir, 1985 (AIR 1986 SC 494 ) https://indiankanoon.org/doc/61710/

[4] http://www.ejusticeindia.com/case-summary-gloucester-grammar-school-case/

[5] Mayor of Bradford vs. Pickle, 1985 http://www.uniset.ca/other/cs5/1895AC587.html

Author Details: Sayali Jayesh Mandlik ((ILS Law College, Pune)

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